R v KJ
[2014] ACTSC 353
•19 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KJ |
Citation: | [2014] ACTSC 353 |
Hearing Dates: | 15 December 2014 |
DecisionDate: | 19 December 2014 |
Before: | Burns J |
Decision: | See [12] – [13] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – Particular offences – crimes and offences against children – possess child pornography |
Legislation Cited: | Crimes Act 1900 (ACT) s 65 |
Parties: | R (Crown) KJ (Offender) |
Representation: | Counsel Ms Burgoyne-Scutts (Crown) Ms Warwick (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) S & T Lawyers (Offender) | |
File Numbers: | SCC 183 of 2014 |
Burns J:
The offences
KJ, you have pleaded guilty to two offences of intentionally possessing child pornography. On 27 June this year, you were in possession of an electronic tablet which contained videos and images of child exploitation material. The following day, police located further electronic devices at your residence. These devices contained videos and images of child exploitation material. The maximum penalty for the offence of possessing child pornography contrary to s 65 of the Crimes Act 1900 (ACT) is seven years’ imprisonment.
On 28 July this year, you pleaded guilty to one charge of possessing child pornography in the ACT Magistrates Court on the second mention (CC2014/6449). On 14 August this year, you pleaded guilty to the second charge of possessing child pornography in the Magistrates Court (CC2014/7358). This was on the second mention for that charge.
An Agreed Statement of Facts was tendered at the sentence hearing and I will not recite here the Statement of Facts. I simply note that with respect to the first offence, the images which form the basis of the charge were found on a computer tablet that you had left inadvertently in your workplace. A total of 351 images and videos were found on that tablet.
The second offence relates to electronic devices that were located by police at your residence when they executed a search warrant at your home. On those devices they found a total of 1910 images and videos. I note that both the tablet, which you had inadvertently left at your workplace and also the electronic devices that were located in the course of the execution of the search warrant were analysed and the images and videos which were found thereon were given classifications according to the CETS scale. I accept that most of the images and videos on the tablet and other electronic devices were at the lower end of the CETS scale, and indeed most of them were at the lowest end of the scale.
Offender characteristics
It is an aggravating circumstance, with respect to these offences, that you were on conditional liberty at the time that you committed them. On 9 February 2007 you were convicted and sentenced in the ACT Supreme Court on five counts of sexual intercourse with a young person. You were sentenced to a head sentence of 12 years’ imprisonment with a non-parole period of 6 years. On 2 October 2012, you were released on parole. You committed these offences whilst you were on parole, and your parole was cancelled on 4 November this year, leaving you liable to serve a remaining term of 5 years, 11 months and 24 days’ imprisonment. That sentence is due to expire on 27 October 2020. You have spent 136 days in custody attributable solely to these offences as of today.
I take into account the contents of the Pre-Sentence Report which was tendered in the sentence hearing. You are 31 years of age and you were born in the United States of America. You moved to Australia when you were approximately nine years old. Your parents separated when you were seven and you initially stayed in the United States with your father but later moved to Australia to be with your mother and sister. I note that you continue to have family support, which is a significant issue in terms of your prospects for rehabilitation.
Since released from the Alexander Maconochie Centre in October 2012, you have worked as a painter and in a pet shop until you were charged with these offences and subsequently remanded in custody. Since being remanded in custody on this occasion, you have been working in the library at the Alexander Maconochie Centre. I note from the Report that there is no suggestion of alcohol or drug issues which need attention. You have frankly admitted that you are attracted to young boys and that you are not attracted to adults. You cannot see this changing. Your current thinking is around management of your sexual attraction to young boys.
You participated in the Adult Sex Offender Program (ASOP) in the Alexander Maconochie Centre in 2011 but you gave evidence that you did not fully participate in that program and, in particular, you did not discuss your sexual thoughts concerning young boys with those who were conducting the program because you thought that being honest about that issue may have negatively affected your prospects for parole. You have suggested that you will participate more fully in the ASOP during your present period of incarceration.
Consideration
I hold considerable doubts about the genuineness of your protestation to participate more fully in the ASOP and your expressions of remorse. Despite your previous experience of being sentenced to imprisonment for child sex offences, and the knowledge that you were on parole with the prospect of nearly six years’ imprisonment hanging over you, you nevertheless committed these offences. It is too easy to make protestations of willingness to change once you have been caught and are facing a lengthy prison sentence, and in my opinion, little weight can be given to those protestations.
I do take into account your pleas of guilty. I accept that they were early pleas. The prosecution case against you was strong, but it was not overwhelming. I will reduce by 25 per cent the sentences that I would otherwise have imposed in order to reflect your pleas of guilty. I take into account the fact that the number of images which were located was substantial, but not amongst the highest number that one sees in offences of this nature before this Court. I also take into account the nature and content of the images as described in the material and in the CETS categorisation.
I further take into account the fact that, as I’ve said, you have continuing family support and that you have positive plans for the future. Both are indicators of prospects for rehabilitation. I also take into account in sentencing you that these two offences are closely related, such that a high level of concurrency is called for. I note that the most important sentencing consideration, with respect to this type of offending, is general deterrence; that is, deterrence of other people who may be minded to commit a similar type of offence. Other sentencing considerations, such as punishment, denunciation and specific deterrence are also relevant.
Sentence
In my opinion, the only appropriate sentence with respect to these offences is imprisonment. With respect to count 1 (CC2014/6449), you are convicted and sentenced to 15 months’ imprisonment. With respect to count 2 (CC2014/7358), you are convicted and sentenced to 18 months’ imprisonment. Each sentence will commence on 27 May 2020, which means that the sentence on count 2 will expire on 26 November 2021.
I must therefore set a new non-parole period for the aggregate sentences which you are currently serving and which I have just imposed. I set such a non-parole period expiring on 3 September 2017.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 5 January 2015 |
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